Because of the importance of adoption, we thought we would shine a spotlight on the worthy cause of taking personal responsibility for the welfare and enjoyment of another human being. This can be accomplished through three primary means in Ohio: adoption, guardianship, and legal custody. Each has its own legal restrictions and obligations, and each is subject to its own unique set of in-depth processes and procedures.
Legal Custody vs. Guardianship vs. Adoption in Ohio
Last year, the Children's Bureau, a division of the U.S. Department of Health & Human Services (DHHS, has chosen the theme, "Teens Need Families, No Matter What," which "highlights the importance of identifying well-prepared and committed families for the thousands of teenagers in foster care. Many of these young people are less likely to be adopted, often because of their age, and will too often age out of the system without a stable support system."
The Children's Bureau has developed the acronym, ENGAGE, to help families thinking about adopting teenagers who are in foster care and teens trying to understand the purpose of adoption have open and honest discussions that help promote a successful outcome. These are valuable tips for potential adoptions involving younger children as well, and they apply equally in situations where guardianship or legal custody is being considered as an alternative to adoption:
• Explain what it means to be adopted, both generally and for teenagers who have grown up in foster care.
• Not a one-time conversation. It's important to engage in an ongoing dialogue that promotes inquiry and transparency.
• Give the teen the opportunity to share their thoughts, feelings, and opinions.
• Ask teens to talk about what, and who is important to them.
• Give teens choices so that they have the opportunity to play an active role in the process.
• Explain the alternatives to adoption and help teens understand the pros and cons of each of the options that are available.
Considerations for Choosing Between Adoption, Guardianship, and Legal Custody
1. What is Adoption?
Adoption is the process by which a non-biological parent becomes legally-recognized as the parent of another. Once a child has been adopted, his or her adoptive parents enjoy all the rights (and responsibilities) of parenthood, and the adoptee's biological parents lose the rights (and are absolved of the obligations) assumed by the adoptive parents.
An adoption can either be "closed" or "open," although the legal structure around open adoptions in Ohio is still evolving. With a closed adoption, the adoptee will generally cease contact with his or her biological parents once the adoption process has been completed. In contrast, an open adoption involves a certain amount of contact between the birth and adoptive parents after the adoption process is complete.
However, many times a relationship can be an evolving process. On one end of the continuum, contact can be restricted to letters and photos. As the birth parents' (or a single birth parent's) relationship broadens, there may be a meeting and a sharing of identifying information. On the other end of the continuum, a full relationship could evolve as in any extended family. Open adoption relationships can also evolve over time, and they can involve relationships with other biological relatives in addition to (or in lieu of) the birth parents.
Currently, Ohio law does not recognize legally-binding open adoption agreements"”even if all parties to the adoption agree. As a result, anyone interested in pursuing an open adoption will need to discuss his or her options with an experienced local adoption professional.
2. What is guardianship?
A guardianship is used to provide for the financial, legal, healthcare, and personal care needs of a child who lacks parental support. This can be the case with a child whose parents are no longer in the picture, and where the child's grandparents or other relatives (or a loving third party) wish to provide support for the child. Guardianship can be a viable option where, for one reason or another, an adoption is not desirable, and where an adult or family with a close relationship to the child is willing to undertake legal responsibility for the child's needs until adulthood.
3. What is legal custody?
In the child welfare context, legal custody typically involves a grandparent or other relative taking on the legal responsibility to provide a permanent and loving home for a child can no longer safely live with his or her parents. When living in the parents' home is not in a child's best interests, many questions arise regarding the child and are usually settled in court, including:
• Where will the child live?
• Where will the child go to school?
• Should the parents have any involvement in the child's life?
While guardianship and custody are distinct legal concepts, they often go hand-in-hand. In order to ensure the child's safety and well-being, it will often be necessary to appoint a guardian who is also granted legal custody.
Differences Between Legal Custody, Adoption, and Guardianship in Ohio
Adoption, guardianship, and legal custody proceedings establish fundamentally-different relationships, and each offers different benefits under different sets of circumstances. Some of the primary differences between adoptions, guardianships, and legal custody arrangements include:
• With guardianship, the child's relationship with his or her parents, whatever it may be, remains in-tact. The guardian is just that, "a guardian," and he or she does not take on the legal role of a parent. However, if necessary to protect the child's best interests, a guardian may petition the court for restrictions on the parents' contact with the ward.
• Guardianship does not necessarily establish the right to provide a safe home for the child. This is done through the establishment of legal custody; and, as discussed above, it will often be necessary to address both guardianship and custody rights when choosing not to pursue an adoption.
• Under appropriate circumstances, guardianship and custody arrangements can be temporary (for example, if a minor needs to have a guardian and custodian appointed until he or she reaches age 18). However, adoption always provides a permanent, stable home for the child.
• With an adoption, the adoptive parents take on the responsibility to meet their child's financial needs. In contrast, while a guardian may be responsible for managing the child's finances, the guardian generally does not have an obligation to provide direct financial support for the child.
In cases where relatives will assume care for children within their extended family, the proposed caregivers are often offered legal custody and/or guardianship as an alternative to adoption. Obtaining legal custody can be less expensive, and some families prefer this route since the biological parents' rights are not terminated.
However, this approach entails certain downsides as well. Adoption assistance will not be available (more on this below), and the child's placement can be less stable since his or her biological parents may retain the ability petition the court to regain custody in the future.
Ohio Adoption Assistance Programs
Federal and state adoption assistance programs help parents meet their adopted children's needs once the adoption process is complete. When determining a family's eligibility for adoption assistance, these programs consider factors such as:
• Whether the child has "special needs" as defined by the state (a child is considered to have special needs if (i) he or she cannot or should not be returned to his or her parents, and (ii) reasonable efforts have been made to place the child without adoption assistance)
• Whether the child is being placed as part of a sibling group or being placed with a sibling who was previously adopted
• The child's age at the time of adoption (for example, in Ohio, children 6 years of age and older may be considered at higher risk for non-placement and therefore in need of adoption assistance)
• The child's race and ethnicity (in Ohio, children who are at least 1 year old and a member of a minority racial or ethnic group can qualify for assistance)
• The child's length of time in foster care (in Ohio, a child who has been in the permanent custody of a public children services agency or private child placement agency for more than a year can qualify)
• The child's health (in Ohio, a child who has been diagnosed with a developmental disability, mental illness, or medical condition can qualify for assistance)
• The child's relationship with his or her foster parents (in Ohio, a child who has lived with a foster family "for at least six consecutive months directly preceding the adoptive placement, and ... would experience severe separation and loss if placed in another setting due to his or her significant emotional ties," can qualify)
Adoption assistance programs can benefit a child in the form of monthly adoption assistance maintenance, medical care, and nonrecurring adoption expenses (up to $1,000 in Ohio). To learn more about Ohio adoption assistance programs, visit the North American Council on Adoptable Children.
In any case involving a child, the child must come first. If you are thinking about adopting a child, if you are considering seeking guardianship or custody of a minor, or if you simply have questions about which option may be best for your situation, you can contact the Cleveland Adoption Network's Permanency Navigator.
Eric Laubacher is a Cleveland attorney with Laubacher & Co.